X ‘HIS CANVAS IS NOT YET COMPLETE’:
LIMITING LEGAL ACCESS, CREATING ‘NON-CITIZENS’
Attorney-General Ruddock has expressed his intention to put forward even further measures essential to the ‘war against terror’. The most recent suggestions are that a new offence of ‘consorting with terrorists’ may be needed, and that the Parliament ought to consider significantly compromising access to independent legal advice, and the access of those legal advisors, to evidence in ‘terrorism’ cases. From the outset of its counter-terrorism legislation, the Government, through both Attorneys-General Williams and Ruddock, made its frustration with the provision of independent, unvetted, legal advice in such cases very clear. It is again revisiting an aspect of the original security legislation which had been of great concern to both the Parliamentary Joint Committee and the Parliament.75
XI THE SECURITY STATE
The accompanying discourse of the ‘war on terror’ highlights two particular aspects that currently hold sway: that we now face a new level of terrorist threat and that civil and political liberties must ‘bend’ to allow for a similarly ‘new’ response. The Prime Minister has reiterated the apparently unproblematic view that ‘the events of the 1 1th of September … changed forever the world in which we live. And it changed the way in which we must … respond’.76 This latter point, the asserted need for a new, changed response to terrorism, leads inevitably to the notion of ‘balance’ between national security and legal protections, a view which too readily suggests that civil and political rights are to be wound back to accommodate the overarching needs of national security. This argued need for balancing apparently competing interests has become a dominant theme in recent developments in counter-terrorism.
Similar concerns regarding this shifting notion of ‘balance’ in the popular discourse surrounding counter-terrorism developments have been expressed in other jurisdictions. The International Committee of the Red Cross has also considered the implications of the fact that ‘the fight against terrorism has led to a re-examination of the balance between state security and individual protections’.77 Historically, however, there is nothing new in this view, nor in its invocation during times of perceived crisis. The interests of ‘national security’ have long been seen as generating critical tensions for values that are fundamental to the political and legal systems of contemporary liberal democracies. Every expansion in security has been accompanied by the claim that certain needs – the need for secrecy, for protection of sources, the urgency of conviction, for instance – require a less than strict observance of what would otherwise be seen as untouchable, indeed elemental democratic, political and civil rights. Attorney-General Ruddock reiterated this view soon after his appointment in 2003: ‘the unavoidable fact is that any tightening of security arrangements does involve some diminution of rights’.78 It is, however, a flawed equation. And it is the dichotomy suggested in this popular view, the argued trade-off between liberty and security, that lies at the heart of what has been described as the ‘startling surrender of fundamental democratic principles’79 in the heightened security environment post-September 11. National security and individual liberties, far from being in competition with one another in a simplistic zero-sum game, are in fact mutually reinforcing. Rather than seeing national security and democracy as being in perpetual friction (as if each exists somehow independently yet in tension with the other), political and civil rights and a robust democratic process are the key elements in the maintenance of national security itself.80
In a later commentary on this view of ‘balance’, Attorney-General Ruddock has argued that the ‘perceived dichotomy between national security and civil rights’ is false.81 Collective democratic rights, Ruddock now suggests, are at one with the security of the state, in which the interests of the state must have primacy in order to meet the security needs of the citizen. Here Ruddock appears to favour the view propounded by his Canadian counterpart, Attorney-General Irwin Cottler, that ‘the Universal Declaration on Human Rights gave governments primacy in protecting the right to life’.82 The Director-General of ASIO Dennis Richardson is now also playing this tune: ‘balanced tough laws are an essential component in the fight against terrorism. The notion that in a liberal democracy such laws constitute a victory for terrorists is a nonsense’.83
Yet a democratic state, underpinned by fundamental principles of the rule of law, responsible government and freedom of political association, cannot compromise those principles without at the same time compromising the democratic nature of the state itself. These three requirements are indispensable, the sine qua non of democratic states, and it is because of their non-negotiability that the preservation of rights and liberties through steadfast constitutionalism can never undermine security, but will constitute the very means of sustaining it. In this view, democracy ‘is not limited by the rule of law but rather is defined by it’.84 These liberties and legal protections are precisely what define us as a democracy, their diminution is the diminution of democracy itself.
The counter-terrorism developments since 11 September 2001, with their unhesitating emphasis on expanding executive power through discretionary and ambiguous application and diminishing judicial review, have clearly recast the ‘relationship between the citizen and the state in responding to terrorism’.85 The perception expressed throughout the current legislative developments in counter-terrorism is that issues of national security should not be dealt with by the courts, that it is for the executive and not the judicial sphere to determine what the interests of national security require. This is a critical issue in any attempt to reconcile national security needs with democratic principles. It gets to the very heart of the concept of the rule of law, itself a fundamental tenet of liberal democratic practice and a protection from the arbitrary use of the state ’s coercive powers. No individual and no organisation should be beyond the reach of the law and, conversely, all citizens have the right to its protections, equally, as a consequence of judicial determination through the courts.86
The growing dominance of the interests of security over individual rights is also entirely consistent with the Government’s reluctance to intervene in the detention by American military authorities of the Australian citizens Mamdouh Habib and David Hicks at Guantánamo Bay which, until recently, was without charge and without access to independent legal advice. It can be seen also in the renewed attempts to legitimise the practice of torture as part of the ‘war on terror’. Professor Alan Dershowitz has argued for the permissibility of torture as a structured, accountable element in this ‘war’, without any heed to its absolute incompatibility with the fundamentals of a liberal democratic state.87 The International Committee of the Red Cross has noted this same push towards the validation of torture and the reintroduction of the death penalty even without appropriate trial processes, for example, through the use of military tribunals in the absence of the most basic judicial protections.88
These arguments for the institutionalisation of torture and indeed for any other human rights abuses, underscore the perilous fragility of contemporary liberal democratic states. They reflect a paradigm shift from democracy to security; from a notion of democracy in which rights, justice and the rule of law are fundamental, to a view which privileges the interests of national security above all else. We are witnessing the development of a new type of state – a state in which the interests of security prevail, even over democracy itself, and in which personal freedoms and liberties depend on the arbitrary will of the state. As Agamben suggests:
In the course of a gradual neutralisation of politics and the progressive surrender of traditional tasks of the state, security imposes itself as the basic principle of state activity. … Because they require constant reference to a state of exception, measures of security work towards a growing depoliticisation of society. In the long run, they are irreconcilable with democracy.89
The ‘war on terror’ is no longer simply endangering key liberal democratic values. It is threatening to vitiate democracy itself, reducing politics to security, and democracy to mere formality.
* Australian Research Council QEII Research Fellow, National Centre for Australian Studies, Monash University. I would like to gratefully acknowledge the exceptional research assistance and comments of Sara Cousins. An earlier version of this paper was delivered at the UNSW Gilbert + Tobin Centre of Public Law National Forum on Terrorism and the Rule of Law, Sydney, 10 November 2003.
1 Justice Michael Kirby, ‘Australian Law – After 11 September 2001’ (2001) 21 Australian Bar Review 253, 263.
2 Christopher Michaelsen, ‘International Human Rights on Trial – The United Kingdom’s and Australia’s Legal Response to 9/11’ (2003) 25 Sydney Law Review 275, 276.
3 See generally Rodney Allen, ‘Terrorism and Truth’ (2002) 27 Alternative Law Journal 157.
4 Report of the United Nations High Commissioner for Human Rights to the World Conference on Human Rights, 4, UN Doc E/CN.4/2002/18 (2002).
5 International Humanitarian Law and Terrorism: Questions and Answers (2004) International Committee
of the Red Cross <http://www.icrc.org/Web/eng/siteeng0.nsf/html/5YNLEV> at 15 November 2004.
6 Jakob Kellenberger, Protecting Life with Dignity: ‘No War is Above International Law’ (2004) International Committee of the Red Cross <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5Z5DKQ?OpenDocument> at 15 November 2004.
7 Report of the United Nations High Commissioner for Human Rights to the World Conference on Human Rights, above n 4, 6.
8 Evidence to Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Canberra, 1 May 2002, 1–2 (Karl Alderson, Principal Legal Officer, Criminal Law Branch, Attorney-General’s Department).
9 Australian Communist Party v Commonwealth (1951) 83 CLR 1.
10 Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 (No 2) and Related Bills (2002) 82.
11 The ministerial proscription power was subsequently enabled through the Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).
12 Parliamentary Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, Advisory Report on the Australian Security Intelligence Organization Legislation Amendment (Terrorism) Bill 2002 (2002) Foreword.
13 Richard Ackland, ‘Belt Up; That’s the Message for Libertarians’, Sydney Morning Herald (Sydney), 26 March 2004, 15.
14 In both the 2002 and 2004 major legislative changes, the Bills were referred to the Committee at the same time of year – over the Easter holiday period. See Jenny Hocking, ASIO, Counter-Terrorism and the Threat to Democracy (2004).
15 Security Legislation Amendment (Terrorism) Act 2002 (Cth).
16 Greg Carne, ‘Terror and the Ambit Claim: Security Legislation Amendment (Terrorism) Act 2002 (Cth)’ (2003) 14 Public Law Review 13, 18.
18 Reem Bahdi, ‘No Exit: Racial Profiling and Canada’s War against Terrorism’ (2003) 41 Osgoode Hall Law Journal 293, 297.
19 Security Legislation Amendment (Terrorism) Act 2002 (Cth) div 101.
20 Evidence to Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, 30 April 2004, 17 (Patrick Emerton).
21 Hocking, above n 14, 205.
22 Commonwealth, Parliamentary Debates, House of Representatives, 9 May 1950, 2268 (Ben Chifley).
23 Jenny Hocking, Lionel Murphy: A Political Biography (2000) 250.
24 See Jenny Hocking, ‘Robert Menzies’ “Fundamental Authoritarianism”: The 1951 Referendum’ in Peter Love and Paul Strangio (eds), Arguing the Cold War (2001) 47, 54–5.
25 Australian Communist Party v Commonwealth (1951) 83 CLR 1.
26 Commonwealth, Parliamentary Debates, House of Representative, 5 July 1951, 1080 (Robert Menzies).
27 George Winterton, ‘The Significance of the Communist Party Case’ (1992) 18 Melbourne University Law Review 630, 656–7.
28 Ibid 653.
29 Brian Galligan, Politics of the High Court (1987) 203.
30 Carne, above n 16, 19.
31 Australian Security Intelligence Organisation Act 1979 (Cth) s 34BAA.
32 Simon Bronnitt, ‘Constitutional Rhetoric v Criminal Justice Realities: Unbalanced Responses to Terrorism?’ (2003) 14 Public Law Review 76, 76.
33 Patrick Walters and Sophie Morris, ‘Downer Orders Analysis on Terror’, The Australian (Sydney), 30 March 2004, 2.
34 Australian Security Intelligence Organisation Act 1979 (Cth) s 34Y.
35 Explanatory Memorandum, Australian Security Intelligence Organisation Legislation Amendment Bill 2003 (Cth).
36 Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (1993). Ronald Crelinsten similarly terms these a criminal justice model and a war model: ‘The Discourse and Practice of Counter-Terrorism in Liberal Democracies’ (1998) 44 Australian Journal of Politics and History 389.
37 Hocking, above n 36, 21.
38 Crelinsten, above n 36, 390.
39 This shift is noted also in the discussion in the report by the International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (2003) 232 <http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5ZBHH7/$File/IRRC_853_FD_IHL_Challenge.pdf> at 15 November 2004.
40 Parliamentary Joint Committee on ASIO, ASIS and DSD, above n 12.
41 John Howard, Speech delivered at the National Press Club, Canberra, 11 September 2002 <http://www.pm.gov.au/news/speeches/2002/speech1848.htm> at 15 November 2004.
42 Commonwealth, Parliamentary Debates, House of Representatives, 3 November 2003, 21727, 21729, 21734 (Phillip Ruddock, Attorney-General).
43 Commonwealth, Parliamentary Debates, Senate, 12 December 2002, 81578 (Bob Brown).
44 Jenny Hocking, ‘Flawed View of Security Power Hits Democracy’, Canberra Times (Canberra), 5 November 2003, 18.
45 Australian Security Intelligence Organisation Act 1979 (Cth) s 34HB8.
46 Australian Security Intelligence Organisation Act 1979 (Cth) s 34VAA.
47 Australian Security Intelligence Organisation Act 1979 (Cth) s 34VAA(1).
48 Australian Security Intelligence Organisation Act 1979 (Cth) s 34VAA(2).
49 Australian Security Intelligence Organisation Act 1979 (Cth) s 34VAA(5).
50 Martin Chulov and Trudy Harris, ‘ASIO Flexes Fresh Muscle’, The Australian (Sydney), 8 November 2002, 1.
51 Department of the Parliamentary Library, ‘ASIO Legislation Amendment Bill 2003’ (Bills Digest No 68/2003–04) 14.
52 Selina Mitchell, ‘Journalists Face Jail under New ASIO Laws’, The Australian (Sydney), 11 December 2003, 1.
54 Jenny Hocking, ‘Charting Political Space: Surveillance and the Rule of Law’ (1994) 21(4) Social Justice 66.
55 Australian Security Intelligence Organisation Act 1979 (Cth) ss 34C–F.
56 Ron Heinrich, ‘The Least Dangerous Profession? Lawyers and the Rule of Law in the Commonwealth Today’ (Speech delivered at the 13th Commonwealth Law Conference, Melbourne, 17 April 2003) 2, <http://www.lawcouncil.asn.au/read/2003/2377372291> at 15 November 2004.
57 Department of the Parliamentary Library, ‘Criminal Code Amendment (Terrorist Organisations) Bill 2003’ (Bills Digest No 174/2002–03) 9.
58 See Law Council of Australia, ‘New Proscription Powers Prompt Grave Concern’ (Press Release, 4 March 2004) Law Council of Australia <http://www.lawcouncil.asn.au/read/2004/2392368082> at 15 November 2004.
59 Criminal Code Amendment (Terrorist Organisations) Act 2004 (Cth).
60 ‘Labor’s Backflip on Terrorist Bans’, Sydney Morning Herald (Sydney), 5 March 2004, 10.
62 Commonwealth, Parliamentary Debates, Senate, 3 March 2004, 20663 (Senator John Faulkner).
63 Commonwealth, Parliamentary Debates, Senate, 4 March 2004, 20794 (Senator Bob Brown).
64 These proposals have been extensively examined by the Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-terrorism Bill 2004 (2004) and by the submissions to it: see <http://www.aph.gov.au/senate/committee/legcon_ctte/anti_terrorism04> at 15 November 2004.
65 Second Reading Speech, Anti-terrorism Bill 2004 (Cth), House of Representatives, 31 March 2004 (Philip Ruddock, Attorney-General).
66 Senate Legal and Constitutional Legislation Committee, above n 64, 28.
67 Recommendation 2: ibid ix.
68 Submission No 18 to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-terrorism Bill 2004 (2004) 10 (Castan Centre for Human Rights Law, Monash University).
69 Anti-terrorism Bill 2004 (Cth) Item 24.
70 Explanatory Memorandum, Anti-terrorism Bill 2004 (Cth) 22.
71 See the excellent discussion of this aspect in Submission No 9 to Senate Legal and Constitutional Committee, Parliament of Australia, Provisions of the Anti-terrorism Bill 2004 (2004) 13 (Joo-Cheong Tham) and the Committee’s consideration in their final report: Senate Legal and Constitutional Legislation Committee, above n 64, 47–8.
72 Anti-terrorism Bill 2004 (Cth) s 337A(3).
73 Submission No 7 to Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Provisions of the Anti-terrorism Bill 2004, (2004) 2.
74 International Civil Liberties Monitoring Group, In the Shadow of the Law – A Report by the International Civil Liberties Monitoring Group in Response to Justice Canada’s 1st Annual Report on the Application of the Anti-Terrorism Act (Bill C–36) (2003) 12.
75 See Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism, and the Threat to Democracy (2004) 221–4.
76 Prime Minister John Howard, ‘Closing Address’ (Speech delivered at the Liberal Party National Convention, Adelaide, 8 June 2003) <http://www.pm.gov.au/news/speeches/speech106.html> at 15 November 2004.
77 International Committee of the Red Cross, above n 39, 3.
78 Philip Ruddock, ‘Opening Address’ (Speech delivered at the 12th Annual Conference of the Australian Institute of Professional Intelligence Officers, Canberra, 22 October 2003) <http://www.ag.gov.au/agd/www/ministerruddockhome.nsf/Page/53A93BC94E27B42ECA256DC7001926B4?OpenDocument> at 15 November 2004.
79 James Dempsey, ‘Civil Liberties in a Time of Crisis’ (2002) 29(1) Human Rights 8, 8.
80 See Laurence Lustgarten and Ian Lee, In from the Cold: National Security and Parliamentary Democracy (1994).
81 Philip Ruddock, (Press Conference, Sydney, 26 February 2004) <http://www.ag.gov.au/agd/www/MinisterRuddockhome.nsf/Page/D52072DD8A72F90ACA256E46007E0C26?OpenDocument> at 15 November 2004.
82 Ackland, above n 13.
83 Dennis Richardson, ‘ASIO Today’ (2004) 41 Australian Institute of Administrative Law Forum 25, 29.
84 Tony Abbott, ‘The World Since September 11’ (Speech delivered at the first plenary session of the Australian Academy of Forensic Sciences, 13 February 2002) 3 <http://www.lawcouncil.asn.au/read/2002/209090 1747> at 15 November 2004.
85 Carne, above n 16, 16.
86 See Heinrich’s paraphrasing of A V Dicey’s three senses of the rule of law in Heinrich, above n 56, 2.
87 Alan Dershowitz, ‘Stop Winking at Torture and Codify It’, Los Angeles Times (Los Angeles), 13 June 2004, M5.
88 International Committee of the Red Cross, above n 39, 8.
89 Giorgio Agamben, ‘Security and Terror’ (2002) 5(4) Theory & Event 2.